The Lone Star State’s Opportunity

Opposition to the Patient Protection and Affordable Care Act, with its embedded health insurance mandates, has stirred a widespread revival of interest in the Tenth Amendment and state sovereignty issues.

The passage of the health care act opened the eyes of many previously apathetic citizens, making them aware of the rapidly expanding scope and influence of the federal government and its intrusiveness intoÂ their everyday lives. They intuitively understand that requiring them to purchase health insurance falls far beyond the powers granted to Congress by the Constitution. Suddenly awake and alarmed by the fact that the federal government has grown so far out of control, and frustrated by what they see as the lack of responsiveness by politicians in D.C., many Americans find themselves looking for answers.

And they are turning to their states.

Fourteen states have sued, seeking to block implementation of the unconstitutional health care act. Twelve states, led by Florida Attorney General Bill McCollum filed in federal court in Pensacola.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,”Â the lawsuit states.

But some states are asserting their own authority to block unconstitutional acts, recognizing that federal courts don’t stand as the sole arbiter of constitutionality.

On Nov. 16, Texas Representative Leo Berman (R-Tyler) filed a bill in the Texas House of Representatives that would nullify federal health care legislation in the the Lone Star State. HB-297 asserts:

The federal Act is not authorized by the United States Constitution and violates the Constitution’s true meaning and intent as expressed by the founders of this country and the ratifiers of the Constitution.
The federal Act:
(1)Â Â is invalid in this state;
(2)Â Â is not recognized by this state;
(3)Â Â is specifically rejected by this state; and
(4)Â Â is null and void and of no effect in this state.

The bill takes things a step further, making it a crime for any official, agent, or employee of the United States or an employee of any corporation to enforce any part of the health care act in Texas, and imposes fines up to $5,000Â and/or five years in prison for anyone convicted of doing so.

While some might call this legislation radical, it rests squarely within the scope of state power as understood by the framers of the Constitution. James Madison wrote in the Virginia Resolution of 1798 that states not only have a right, but a duty to step in when the federal government oversteps its authority.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Tenth Amendment Center founder Michael Boldin said that Berman’s bill does not represent an extreme viewpoint and insists each state should determine the best path for its own citizens.

â€œThere is nothing more extreme than having a federal government that refuses to abide by the laws that we the people of the several states delegated to it in the Constitution,â€ he said. â€œThe important point here is that it’s up to the people of each state to determine what the best response may be. One state, as Wyoming did with its Firearms Freedom Act, may decide that penalties on federal agents is the rightful response.Â Another, such as California with medical marijuana, may choose to create an environment conducive to non-compliance by masses of people. Either way – or somewhere in between – that’s the beauty of the American system.Â We can have widely varying actions, responses and viewpoints in different states while all living together in peace. One-size-fits-all solutions are actually the problem, and state-by-state decision-making is the natural response.â€

Berman said that his bill faces an uphill battle as long as the current Texas House leadership remains in place. The legislation will likely end up bottled up in committee.

â€œThe best chance for passage is to get rid of the current Speaker,â€ Berman said.

That speaker is Rep. Joe Straus (R â€“ San Antonio)

Straus did not respond to an email request for comment.

Despite the fact that the bill faces long odds for passage, Boldin said introducing this type of legislation remains important,

â€œWhether or not there’s any guarantee of getting something passed is no reason to not do what’s right,â€ he said. â€œChampions look at insurmountable odds and take them on with passion, and that’s what We the People need to do in defense of our liberty.â€

And its about baby steps. Boldin said he views the dismantling of an overreaching, bloated federal government a long-term project.

â€œDealing with a constitutional monstrosity like Obamacare is going to take time. In the mid-90s, people around the country were saying that it was absurd for California to go it alone and try to pass a medical marijuana law. But they did, and today, weÂ see 15 states openly defying the federal government on this issue,â€ he said. â€œThe blueprint is straightforward – when enough people say no to the federal government and enough states do so as well, there’s not much that the feds can do to enforce their unconstitutional ‘laws’ on us.â€

Madison agreed, Writing in Federalist 46, he laid out the blueprint for constraining overreaching federal power.

â€œShould an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.â€

Texas has taken the first step. Now the people of Texas need to rise up and insist on passage of the bill. Ultimately, the people’s voice will carry the day.

The question remains, will they speak?

EDITOR’S NOTE: Texas is the first state to see the Federal Health Care Nullification Act introduced. Sources close to the Tenth Amendment Center tell us to expect up to 10 other states considering such legislation in the 2011 legislative session. CLICK HERE – to learn more about the bill and track progress of the act around the country.

In my opinion, HB 297, like other legislation of this nature, contains the same flaws as the State Sovereignty Resolutions. They do not lay a foundation for the validity of the legislation or resolution by explaining the separation of power between the States and their federal government. Citing the 10th Amendment, standing alone, is not sufficient in my opinion.

HB 287 states:

"[T]he Tenth Amendment to the United States Constitution defines the total scope of federal power as that which has been delegated by the people of the several states to the federal government…"

No there is a separation of power that proceeds any delegation of power or the 10th Amendment. The delegation of power flows after and from the separation of power. A delegation of power cannot pertain to a class of power that was never granted in the first place. Legislation like this continues to miss this critical point.

HB 287 also states that the health care bill:

"[M]akes a mockery of James Madison's assurance in Federalist Paper Number 45 that the powers delegated to the federal government are 'few and defined' while those that remain in the state governments are 'numerous and indefinite.'"

The response by the average person to those words, standing alone, would be: SO WHAT?

The application of "few and defined" powers is not explained. Maybe health care falls in the "few and defined" powers or maybe in doesn't. How is the average person you want to support your legislation supposed to make that determination? If it is not explained how can legislators expect to educate and garner support from other elected officials needed to pass the legislation or resolution?

If legislators want to enact legislation to nullify federal laws like the health care bill, then they had better explain the separation of power that proceeds the delegation of power in the legislation they are proposing. Otherwise, they risk being marginalized and wasting a golden opportunity to reverse federal usurpations of power.

Bob – interested in hearing more detail on what you mean by lacking a foundation on the separation of power. Can you give an example of some text that you feel would be appropriate to include? doesn\’t have to be long, maybe just an idea of what direction you are referring to? We would love to have your input on these kinds of things!

How about the fact that criminal law (or essentially ANYTHING the feds decide they want to legislate) can be pinned by Congress and SCOTUS as being within the Commerce clause or the general welfare claue?

Michael-I think the first step is to establish the principles, the problem, and identify the separation of powers. The wording, in my opinion, then becomes a matter of style as long as these components are incorporated into the document so the principles are understood. I am emailing you information for you to review.

It does nothing to nullify the Health Care Act. It is only a gesture or protest. It is absurd to try to make it a state crime for federal agents to try to collect the insurance premium. Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be immediately dismissed, on the grounds that an agent has immunity for anything he does while on duty. The state agent who tried to enforce it would be arrested, prosecuted, and convicted of interfering with a federal officer.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

But who actually has the power over state police force? The state itself. The federal court and government can make any demands they want of the state but the state can simply refuse and let the federal agents rot in their jail. The only way the federal government can truly force a state to do anything is to invade and use force to make them comply.

But the federal government would use force, not initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.

But you miss the point. Which federal agents would be in jail? The PPACA prevents just PPACA enforcement actions from being singled out, so the state would have to jail all IRS agents for all their actions. Sounds appealing, but if it were attempted the political blowback would kill the nullification movement for a generation or more. We have to proceed incrementally. Take on too much too soon and the result will be worse than if we had done nothing at all.

If one state stands alone, the feds might use force. but they might not. In fact – the feds hardly use force at all when it comes to 15 states refusing to comply with federal orders on marijuana. While they still threaten, and use force from time to time, the numbers of people resisting and defying are growing – even in the face of federal court rulings against them. Maybe we should learn from that kind of courage?

November 21, 2010 at 3:35 pm

Jon_Roland

The reason the feds are backing down over medical marijuana in some states is the widespread public knowledge that something is legal under state law makes it more difficult to get a federal jury in that state to convict. It is not doing nearly as much to deter them from going after physicians civilly. Your argument would have more merit if all the cases were tried by juries, but there are large gaps in coverage for rights to a jury trial. Just look at what happens in income tax cases. Yes, one might occasionally win an acquittal for wilful failure to file and pay, which most juries don't understand, but it doesn't prevent civil action or holding persons for long periods, sometimes for years, for contempt of court, for which there is no right to a jury under current Rules of Judicial Procedure. (Yes, there is under the Constitution, but that argument won't work.)

What if it was over an issue that the public overwhelmingly hates such as bad-touch tsa searches? Public support for arresting tsa agents or any agent of the federal government might become popular. That could be the foot in the door for PEACEFUL interposition.

Once we arrest them we put them under something easy like house arrest that way they would be prohibited from enforcing the federal law and the state wouldn't be seen as the bad guy. We can even arrange a public donations to buy the arrested agents pizza.

November 21, 2010 at 3:27 pm

Jon_Roland

18 USC 111:

§ 111. Assaulting, resisting, or impeding certain officers or employees
(a) In General.— Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced Penalty.— Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

November 21, 2010 at 4:11 pm

Bob Greenslade

"…while engaged in or on account of the performance of official duties…"

Are you asserting that when an agent for the federal government acts outside of that government's limited grant of powers he or she is engaged in the performance of official duties?

If yes, then are you asserting that a federal law can apply to a class of power that was not granted to the federal government in the first place?

November 21, 2010 at 4:38 pm

Jon_Roland

I'm not asserting it. The federal courts are asserting it. There was a time when an agent had to be acting within his authority to have official immunity, but through a series of precedents the courts (including state courts for state agents) have established that the agent only has to be "on duty" or acting "during his duty hours". That is how Lon Horiuchi got away with murdering Vicki Weaver. Sure, it is still possible to prosecute an agent for something he does in his home while off duty, such as killing his wife, but if it has any connection at all with his work he will probably only be subject to a letter of reprimand by his supervisor.

November 21, 2010 at 8:31 pm

Bob Greenslade

If the federal judiciary can apply federal law to a class or sphere of power that was not granted to the federal government in the first place, then what is to stop them from declaring the actions of your Nullification Commission unconstitutional?

November 21, 2010 at 4:26 pm

Philosopherking

OK but where is it written that the officer of one jurisdiction can willfully violate the law of another. A cop in one city can't violate the law in another. Doing so will still get him arrested so if a federal officer violates the law of a state jurisdiction then he is still prosecutable by that law.

November 21, 2010 at 4:41 pm

Jon_Roland

By original understand, yes, but federal court precedents have put us way beyond that, turning "federal agent" into a title of nobility, a class of persons above the law.

You're playing devil's advocate and your arguments are reinforcing how corrupt the system has become. Obviously, we do not believe court precedents are supreme and/or infallible, nor are they valid when they are wrong in their judgments. Knowledge is power. Exposure of the corruption will bring it to its knees. Cowardice feeds the beast.

There is no way they will start a war with any state, much less the state of Texas. If that were to happen OK and AR would get involved in a hurry. If the states call their bluff, they have no choice but to back down. It will be up to the individual sheriff of each county that decides who will be arrested as they are the supreme authority. The government has everybody scared of them and they like it that way. They have a couple million in the military and Texas alone has 24 million people, and I'll bet more than half that are armed. It would be a war they would not start.

November 24, 2010 at 9:15 am

Jon_Roland

The feds will only back down if entire states are united and act in concert. Isolated resistance is futile. It makes things worse. Remember the words of Ben Franklin, "Either we hang together or we will all hang separately."

You guys should stop complaining because, one the health care we have now isnt as good as it was supposed to be. also the law has just been signed so give it some time. so if u want to say u have the right to choose tell that to ur congress men or state official. If you do not have insurance and need one You can find full medical coverage at the lowest price check http://ow.ly/3akSX .If you have health insurance and do not care about cost just be happy about it and trust me you are not going to loose anything!

On the enforcement of this legislation concerning Federal agents, and to others in existence or to be considered in the future regarding any issue of nullification and interposition:

Should the Feds be persistent in enforcing their "law" in Texas if this legislation passes, Texas needs to respond with the rest of the tools provided here at the Tenth Amendment Center. Here's how Texas can defend its declaration of sovereignty and Texans.

1. State Sovereignty and Federal Tax Funds Act

Texas can begin to withhold some (or all) taxes collected on behalf of the Federal government and store them in an escrow account until a resolution has been found, or returned to Texans, respectively.

2. Constitutional Tender Act

Texas can declare the Federal Reserve's "greenbacks" as the junk currency that they are and allow for the payment of public and private debts in gold and silver (to begin with), and any other thing they so choose after. This will hit Uncle Sam in the pocketbook even harder than withholding taxes, and would also cause him a headache once international interests take notice.

3. Sheriffs First Act

Let's say the Feds then decide to send an army of Treasury and/or IRS agents, accompanied by two armies of tax attorneys (there always are more lawyers, after all) to Texas. This Act could bar state and local law enforcement from assisting the Feds in the looting and kidnapping of Texans. Texas' sheriffs could maybe even then declare these agents "persona non grata" in their counties. This Act's legal precedence traces back to English common law.

4. Defend the Guard Act

So with no local help and the situation deteriorating further, probably amidst a brushfire in the Home Rule/secessionst camp, the Feds, in their infinite wisdom, read Texas the Riot Act. The Feds signal that they will be mobilizing the National Guard to restore "order" and to put down the "insurrection". Defend the Guard would grant the governor the authority to withdraw Texas' National Guard members from the "national" force and bring them back to Texas. It is hoped that they would then be called upon to defend Texas from a coming invasion. Let's also not forget that Texas is one of twenty-two states with a State Guard (or militia), and that the Texas National Guard members could easily be integrated into this structure.

Last but certainly not least,

5. Firearms Freedom Act

No further stymie of tyranny has ever existed than a well armed populace. This Act would declare all firearms manufactured within Texas and that stay in Texas to be exempt from the Federal Commerce Clause. The legislature could go even further and declare all Federal gun regulations null and void. It would be hoped that the Feds would realize what they are up against and decide to back down.

But should they not, citizens of the rest of the Union need to see raising a hand against one of its own as the evil that it is; they cannot allow the Federal government to do it (again). I pray others States would come to Texas' aid, and that a popular front of resistance can form in statehouses, and, if need be, on battlefields. Nothing good can come from violence, but if the Feds are looking to have an Iraq, Afghanistan, and Vietnam bundled together and delivered to America's doorstep, they will use force. And then they, like so many others, will learn why you're not supposed to mess with Texas.

I'm not an intellectual, and I'm definitely not the sharpest tack in the box but I like to think of myself as a normal American. I am very pleased when I see something initiated such as a bill to rein in the federal government. If it don't work, get a bigger cannon or get lots of cannons and fire them all at the same time. I'm encouraged then and do what I'm called on to do, vote and support the verbal/legal fighters. But I have to tell you I get really upset when some know-it-all smart–z can only say "that won't work," or " that's a bad idea." Crap, the more bullets you're shooting at the enemy the less likely he is to stand up and shoot back, at least he ain't thinking of offense. Now, get it together, put on a unified front, use all the weapons available and know that I'm pulling for you. Because if you screw this up and don't get this government back under control, you will find the unwashed farmer from 1775 is still around and it won't be pretty. Semper Fi

To defend our rights of soverignty is our duty, (even if it ends in failure or death).
To accept what is imposed by others without our consent is slavery.
Will we enable a overreaching federal system to enslave us, or will we die as free men?
I will die free!!

There is a big learning curve that needs to take place for Texas lawmakers on this issue, and I think Mr. Roland has done a very reasonable job of helping to illustrate the limitations of the current proposal. To go further, I think it's important to understand the limitations of the legislature in terms of their schedule and ability to dissect these issues within the time alloted for the 2011 session. Roland's proposal to create a "Nullification Commission" is by far more practical in terms of realizing what we all want in terms of a thorough review of a very LONG list of questionable federal actions that date back more than 10 years. It is ridiculous to expect that the legislature will be able to nullify more than one or two issues in 2011. We need folks to get behind Roland's proposal. Advocates and lawmakers alike will realize it sooner or later, most likely toward the middle or tail-end of the session, and by then it may be too late. We have to start early and get the message across in a very thorough format that we will not settle for anything less than flawless execution of nullification that will transform our local culture.

Its not just the last ten years, and the legislature doesn't nullify. Nullification is when the feds stop trying to commit unconstitutional acts, not when the legislature issues some declaration. In between is a lot of people acting in concert in response to leadership from the legislature, a process that can take years or decades. Ultimately, this is about organizing a change in civic culture, mobilizing public action on a sustained basis. A mere legislative resolution is just words on paper that will soon be forgotten unless enough people act on it.

The bill's author should add a clause to the bill for sentimental reasons saying something to the effect:

"The Governor of Texas is hereby directed by the people of Texas, as expressed by this legislator, to seek immediate redress for the rights and liberty's usurped from the people of Texas by this unauthorized act of congress."

The legislator must make it as clear and unambiguous as possible that this act is about defending the cherished rights and liberty's of the people of Texas.

While controlling the State and directing it to resist theses usurpations, is important, it is but a temporary measure. The real fight requires alerting the people of not only Texas but the rest of the United States to the dangers that now exist and rallying them to rise to the defense of their constitution of Limited Government.

The Government of Texas cannot war alone, she can merely help protect the people of Texas from its consequences for a time. The war which will result form what will be termed by Washington as a "Constitutional Crisis" brought forth by theses acts can only be won by an alert, informed, and free people rising to the occasion.

After this act the State will have done its first job(as expressed in the Federalist papers) in alerting the people to the danger and calling for their aid in the defense of liberty. Their second job may be a lot more difficult, responding to the advice and consent of their people in how to best go about defending them on a more permanent basis. But then again that is precisely what they do all the time with regard to the domestic threats of criminal usurpations.

It should be noted that the Texas Speaker of the house in question Rep. Joe Straus is a corrupt liberal who only became speaker because of a coup the other year in which 11 liberal republicans sides with the democrats to elect him. (Texas elects its speakers by whole vote)

The republicans in the Texas legislator made massive gains in the 2010 election so it should be possible to get rid of Rep. Joe Straus. Even still Joe has attempted to blackmail Texas republicans in the legislator into vote for him. Threatening to redraw their district so they would be defeated if they voted against him.

IMAGINE IF THE FED MADE EVERYONE BUY AUTO INSURANCE EVEN IF YOU DIDN'T HAVE A CAR AND DON'T WANT IT? OBROTHERCARE IS THE SAME SENARIO, hE IS VERY THICK AND DON'T GET IT YET. COMPLETELY TONE DEAF AND WILL NEVER GET IT. LIVING THE GOOD LIFE & MAKING A MOCKERY OUT OF THE POSITION OF PRESIDENT OF THE USA. HE WILL TRY TO INFLICT AS MUCH DAMAGE ON AMERICA BEFORE HE LEAVES BECAUSE HE KNOWS HE IS A ONE TERMER. AT LEAST BUY ME A DRINK & GET TO KNOW ME BEFORE YOU SCREW ME. THE ARROGANCE IS RIGHT IN YOUR FACE, HE WANTS IT HIS WAY OR THE HIGHWAY. HE'S RIGHT, WE MUST SHOW HIM THE HWY.

Texas is unique from other states in that when it entered the Union, it gave itself an out. Article One, Section 2 of the Texas Constitution states in part that: "…[Texans] have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient."

This is a unilateral choice for Texas. We don't have to get "permission" from D.C. to act. It's my greatest hope that Texans will one day "reform" their working relationship with Washington in a way similar to the following: Texas will not comply with, or fund, UN-enumerated (as expressly read in Article One, Section 8 of the U.S. Constitution) federal laws or regulations until the Texas State Legislature has vetted, approved, and funded said items. In addition, Texans must insist that Federal Court decisions will only be observed and respected in Texas if those rulings reflect the original intent, and expressed jurisdiction of the federal courts.

To achieve this dream Texas and the other states that share her sentiment in this matter(there are a great many) must find a way to take back that which was taken from them by the Federal Government in taxes to pay for theses unenumerated functions. (This will likely require correlated efforts in order to have a significant impact.)

It would behoove congress if they were to make but one condition to their voting for any bill that this condition be the total elimination of all “conditions” which any state must meet to reseave these funds.

The propose being to free the States to experiment not only in reform but also freedom in the abolition of some of theses problems (with the transfer of their federal contributions to fund the general state government after State tax cuts).

Eventually of course we would want all the States to raise their own taxes to fund all programs state programs themselves. It really makes no sense to be taxed by one government for the functions of anther. Such an “arrangement” of government is as we have long observed is only a source of non-democratic blackmail.

End the Federal taxation and/or transfers to our State and you end the abusively compromising relationship potential. We the people will then be free to elect our state governments for one propose and our Federal government for anther. A president's position and skills on matters like education or really domestic crime should not matter. We should be free to elect the president and our congressmen entirely on the basis of their skills and policy regarding their positions enumerated powers.

For example: In my judgment someone like Ron Paul would make a terrible president insofar as the enumerated functions of the presidency goes, but he would make a fantastic Governor.

Teresa,
Unfortunately the general population in Texas has changed demographically since your State entered the Union. I'd hazard a guess that up to 90% of recent immigrants to your State have come from extremely Socialist Countries and through no fault of their own because of the way they've been indoctrinated by their respective governments welcome the government intrusions into their lives.

First of all, about who has the right to do what and how comes from the Constitution. A contract put in force by the states. Obama Care is a breach of contract of which all states should outlaw. Anyone in the Congress trying to impose any such Unconstitutional law should be made to step down. When all parties of the contract default, it becomes the responsibility of the people to take control.
Now if we have that many vegetables in the garden, then maybe some other country will come here to do it for us. But I'm sure that it won't be in the way that we would agree upon.